TaxTMI 
TaxTMI 
1974 (5) TMI 100
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....d been raised by the assessee in the application under section 31(5)?" 3.. The facts of Tax Case No. 62 of 1970 are these: Guru Charan Sao, who is a grocery dealer at Bakhtiarpur, was assessed under section 16(5) of the Act as an unregistered dealer on a gross turnover of Rs. 2,40,000 for the period 1st February, 1961. to 30th September, 1967, and a tax of Rs. 12,300 and penalty of Rs. 500 were imposed on him by an order of assessment dated 5th October, 1967. After a lapse of nearly seven months the demand notice was issued on 23rd May, 1968, and served on him the next day. The assessee did not file an appeal under section 30 of the Act before the prescribed appellate authority against the order of assessment. On 26th June, 1968, he filed an application before the Commissioner invoking his jurisdiction under section 31(5) of the Act to set aside the order of assessment. The Commissioner by his order dated 26th November, 1968, dismissed that application. The dealer thereupon filed an application under section 31(2) of the Act before the Tribunal for revising the order of the Commissioner. The Tribunal by its order dated 1st November, 1969, allowed the application, set aside the ord....
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....now left without any remedy, no doubt due to his own laches, and in view of the specific allegation by him that certain sales have been assessed to tax illegally, the learned Commissioner may, in the interests of justice, call for the records and examine In particular the legality of the order of assess. ment. We accordingly remand the case to the Commissioner for a consideration of the application dated 3rd January, 1969, of the assessee and for passing such orders as he may deem fit." The Commissioner of Commercial Taxes thereupon filed an application under section 33(1) of the Act before the Tribunal for referring certain questions to this court. The Tribunal, however, declined to make a reference and rejected the application by its order dated 28th September, 1970. The Commissioner then filed an application in this court under section 33(3) of the Act and a Bench of this Court by the order dated 20th July, 1971, called upon the Tribunal to state a case on the question of law mentioned above and to refer it to this court. 5.. In order to decide the question of law which has been referred for decision, it would be necessary to refer to section 31 of the Act in extenso. Section ....
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....esentatives, a reasonable opportunity of being heard." 6.. By a notification dated 26th November, 1964, the Commercial Taxes Tribunal has been constituted under section 34A of the Act and it exercises all the powers and performs all the functions of the Board of Revenue. Hence, the power of revision under section 31(1)(b) and section 31(2) of the Act are now being exercised by the Commercial Taxes Tribunal. 7.. On a plain reading of section 31, it will appear that no restriction has been put on the power of the revisional authority under sub-section (1), sub-section (2) or sub-section (3) of section 31. Under sub-section (5) the Commissioner has been vested with the power of calling for and examining the record of any proceeding under the Act for the purpose of satisfying himself as to the legality or propriety of an order passed by an Inferior authority appointed under section 8 of the Act. The only limitation which is put upon the power of the Commissioner under the proviso to sub-section (5) is that he cannot Initiate an action after the expiry of four years from the date of the order which is the subject of scrutiny. The jurisdiction of the Commissioner under sub-section (5) ....
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....etitioner has a business of considerable size. In the circumstances, his plea that he is unable to deposit about Rs. 4,000 for availing of the normal channel of appeal is not acceptable. 3.. Admission refused. " 10.. Mr. Shreenath Singh submitted that the orders passed by the Commissioner in the two cases were not revisable by the Tribunal because the orders amounted to refusal to exercise jurisdiction under section 31(5) of the Act and they were not orders passed under section 31(5). The learned standing counsel made a distinction between an order passed under section 31(5) and "initiation of action" under section 31(5) and submitted that the Commissioner has first to decide whether to initiate an action under section 31(5) and then to pass an order as contemplated under section 31(5). If he decides not to initiate an action under section 31(5) the matter ends there and his decision is not subject to revision under section 31(2). If, however, he decides to initiate an action and proceeds further to pass an order either In favour of the dealer or against him, the order is subject to revision under section 31(2). In the main section 31(5) the words "initiation of action" do not oc....
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....e Act. 12.. Mr. Shreenath Singh next raised the contention that the orders passed in the two cases were not revisable by the Tribunal at the instance of the dealers because those orders were not prejudicial to the dealers. The learned standing counsel in support of this contention mainly relied on certain observation made by the judicial Committee in the case of Commissioner of Income-tax v. Tribune Trust, Lahore[1948] 16 I.T.R. 214 (P.C.); A.I.R. 1948 P.C. 102. In that case one of the points which fell for consideration before the judicial Committee was whether the assessees could be denied the relief claimed by them under section 33 of the Income-tax Act, 1922, on any valid ground. Section 33 of that Act read as follows: "(1) The Commissioner may of his own motion call for the record of any proceeding under this Act which has been taken by any authority subordinate to him or by himself when exercising the power of an Assistant Commissioner under sub-section (4) of section 5; (2) On receipt of the record the Commissioner may make such enquiry or cause such enquiry to be made and, subject to the provisions of this Act, may pass such orders thereon as he thinks fit: Provided th....
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....rmative. While considering that question, Agarwala, C.J., observed that an order refusing to revise was not an order which could be said adversely to affect either party to the proceedings. In that case neither the revisional power of the Commissioner nor the scope of the revisional power of the Board of Revenue was under consideration. The decision in that case, therefore, does not support the view which has been canvassed by the learned standing counsel. 14.. The learned standing counsel next relied on a Bench decision of the Andhra Pradesh High Court In the case of Kalluri Bheemalingam and Others, In re[1967] 19 S.T.C. 116. In that case, the question for consideration was whether an appeal under section 23 of the Andhra Pradesh General Sales Tax Act, 1957, would lie to the High Court against the orders passed by the Board of Revenue under section 20(1) of the Act. Section 23(1) of the Andhra Pradesh Act read as follows: "Any dealer objecting to an order relating to assessment passed by the Board of Revenue suo motu under sub-section (1) of section 20 may appeal to the High Court within sixty days from the date on which the order was communicated to him: Provided that the High....
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.... The Supreme Court while considering the scope of section 31(1) of the Madras Sales Tax Act made the following observation: "The power is conferred on the Board to remedy any injustice. It is open to an assessee or the revenue to bring to the notice of the Board any error made by the subordinate authorities. It is up to the Board to consider whether the case is a fit case for exercising its revisional jurisdiction. If the Board had gone into the case and come to the conclusion that there was no justification for exercising its jurisdiction under section 34, then in the absence of any vitiating circumstance recognised by law, the High Court would not have interfered with the discretion of the Board. But what has happened in this case is that the Board had refused to exercise its jurisdiction under the erroneous view that in view of the dismissal of the assessee's appeal it was not competent to entertain the petition." 15.. I may now refer to a decision of the Supreme Court in the case of Everest Apartments Co-operative Housing Society Ltd. v. State of Maharashtra A.I.R. 1966 S.C. 1449. In that case the Supreme Court had to consider the scope of section 154 of the Maharashtra Co-op....
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....ords of the two enactments are not materially equal. The Income-tax Act used the words suo motu which do not figure here. It is, of course, true that the words 'on an application of a party' which occur in section 150 of the Act and in similar enactments In other Acts, are also not to be found. But that does not mean that a party is prohibited from moving Government. As Government is not compelled to take action, unless it thinks fit, the party who moves Government cannot claim that he has a right of appeal or revision. On the other hand, Government should welcome such applications because they draw the attention of Government to cases in some of which, Government may be Interested to Intervene. In many statutes, as for example the two major procedural Codes, such language has not only not inhibited the making of applications to the High Court, but has been considered to give a right to obtain intervention, although the mere making of the application has not clothed a party with any rights beyond bringing a matter to the notice of the court. After this is done, It is for the court to consider whether to act or not. The extreme position does not obtain here because there is no right....
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....es in the application under section 31(5). It was submitted on behalf of the dealers that no illegality was committed by the Tribunal in remanding the two cases and in directing the Commissioner to dispose of the applications under section 31(5) in the light of the directions given by it. In support of this contention, the learned counsel appearing for the assessees referred to some decisions. In the case of Deputy Commissioner of Commercial Taxes, Madras Division v. C.M. Swamy & Co.[1954] 5 S.T.C. 163., the Appellate Tribunal painted out that the Commercial Tax Officer had rightly rejected the appeal as filed beyond the period of limitation allowed by the law as it stood then but had added: "But in view of the large turnover and the legal implications involved, he (the Commercial Tax Officer) could have taken up the matter suo motu in revision. It is unnecessary for us to go into the merits of the case at this stage. We therefore direct the Commercial Tax Officer, North Madras, to take up this matter suo motu in revision and dispose of it on merits after giving a hearing to the appellants, i.e., the assessee." Against that order the Government preferred a revision petition. The Hi....